Sarla Tulsian vs New India Insurance Co. Ltd.

Kailash Gambhir, J.—The present appeal arises out of the award dated 3.11.1997 of Motor Accident Claims Tribunal Whereby the tribunal awarded a sum of Rs. 1,35,200/- along with interest @ 12 % per annum to the claimants.

The brief conspectus of the facts is as follows:

On 2.8.1989 at about 6.05 A.M. deceased Hemant Kumar while driving his two wheeler scooter, bearing registration No. DES 2181 set out from his house situated at Model Town for going to St. Xavier''s School. At about 6.15 A.M., the deceased entered the Mall Road crossing along with the road leading to Timarpur and Majnu Ka Teela for proceeding to Civil Lines. The scooter at that time was proceeding at a moderate speed and on the proper side of the road. Suddenly a truck bearing registration No. DBL 4168 being driven at a very fast speed in a rash and negligent manner by its driver hit the scooter from behind and stopped only after 30 paces. As a result of the forceful impact, the scooter along with the scooterist fell on the road. The scooterist sustained grievous injuries. He was removed to hospital and he succumbed to his injuries on 4.8.1989.

A claim petition was filed on 16.1.1990 and an award was passed on 3.11.1997. Aggrieved with the said award enhancement is claimed by way of the present appeal.

Sh. V.P. Chaudhary, counsel for the Appellants contended that the tribunal has erred in assessing the income of the deceased at Rs. 1198/- per month whereas after looking at the facts and circumstances of the case the tribunal should have assessed the income of the deceased at Rs. 12,000/- per month. The counsel further maintained that the tribunal erred in making the deduction to the tune of 1/2nd of the income of the deceased towards personal expenses when the deceased was a bachelor at the time of accident and is survived by his parents. The counsel submitted that the tribunal erroneously applied the multiplier of 9 while computing compensation when according to the fact and circumstances of the case multiplier of 17 should have been applied. It was urged by the counsel that the tribunal erred in not considering future prospects while computing compensation as it failed to appreciate that the deceased would have earned much more in near future as he was of 23 years of age only and would have lived for another 40-50 years had he not met with the accident. It was also alleged by the counsel that the tribunal did not consider the fact that due to high rates of inflation the deceased would have earned much more in near future and the tribunal also failed in appreciating the fact that even the minimum wages are revised twice in a year and hence, the deceased would have earned much more in his life span. The counsel also raised the contention that the rate of interest allowed by the tribunal is on the lower side and the tribunal should have allowed simple interest @ 12% per annum in place of only 15% per annum. The counsel contended that the tribunal erred in not awarding compensation towards loss of love & affection, funeral expenses, loss of estate, loss of consortium, mental pain and sufferings and the loss of services, which were being rendered by the deceased to the appellants.

Per Contra Mr. Dinesh Doshi, counsel appearing for respondent No. 2 submitted that there is no illegality in the impugned award. Counsel further contended that award passed by Tribunal is absolutely fair, just and reasonable and no fault can be found with the same.

I have heard the learned Counsel for the parties and perused the record.

As regards income, the case of the appellants was that the deceased was in private service besides earning as Fabric Commission Agent & used to earn Rs. 6000/- p.m.

The appellants claimants had not brought on record any document proving the income of the deceased. After considering all these factors, I am of the view that the tribunal has not erred in assessing the income of the deceased at Rs. 1200/- p.m. after taking aid of M.W. Act.

It is no more res integra that mere bald assertions regarding the income of the deceased are of no help to the claimants in the absence of any reliable evidence being brought on record.

The thumb rule is that in the absence of clear and cogent evidence pertaining to income of the deceased learned Tribunal should determine income of the deceased on the basis of the minimum wages notified under the Minimum Wages Act.

Therefore, no interference is made in relating to income of the deceased by this court.

As regards the increase in minimum wages the tribunal committed no error in granting increase in minimum wages in the facts and circumstances of the case.

As regards the contention of the counsel for the appellant that the 50% deduction made by the tribunal are on the high side as the deceased is survived by his aged parents. In catena of cases the Apex Court has in similar circumstances made 1/3rd deductions. Therefore, I am inclined to interfered with the award on this ground and modify the award by deducting 1/3rd expenses towards personal expenses.

As regards the contention of the counsel for the appellant that the tribunal has erred in applying the multiplier of 9 in the facts and circumstances of the case, I feel that the tribunal has committed error. This case pertains to the year 1989 and at that time II schedule to the Motor Vehicle Act was not brought on the statute books. The said schedule came on the statute book in the year 1994 and prior to 1994 the law of the land was as laid down by the Hon''ble Apex Court in 1994 SCC (Cri) 335, G.M., Kerala SRTC v. Susamma Thomas. In the said judgment it was observed by the Court that maximum multiplier of 16 could be applied by the Courts, which after coming in the force of the II schedule has risen to 18. The deceased was of 23 years at the time of the accident and his parents were of 41 years and 39 years of age. In the facts of the present case I am of the view that after looking at the age of the claimants and the deceased the multiplier of 13 should have been applied by the tribunal. Therefore, in the facts of the instant case the multiplier of 13 is made applicable.

As regards the issue of interest that the rate of interest of 12% p.a. awarded by the tribunal is on the lower side and the same should be enhanced to 15% p.a., I feel that the rate of interest awarded by the tribunal is just and fair and requires no interference. No rate of interest is fixed u/s 171 of the Motor Vehicles Act, 1988. The interest is compensation for forbearance or detention of money and that interest is awarded to a party only for being kept out of the money, which ought to have been paid to him. Time and again the Hon''ble Supreme Court has held that the rate of interest to be awarded should be just and fair depending upon the facts and circumstances of the case and taking in to consideration relevant facts including inflation, policy being adopted by Reserve Bank of India from time to time and other economic facts. In the facts and circumstances of the case, I do not find any infirmity in the award regarding award of interest @ 12% p.a. by the tribunal and the same is not interfered with.

On the contention regarding that the tribunal erred in not granting adequate compensation towards loss of love & affection, funeral expenses and loss of estate, whereas, no compensation has been granted towards the loss of services, which were being rendered by the deceased to the appellants. In this regard compensation towards loss of love and affection is enhanced to Rs. 20,000/-; compensation towards funeral expenses is enhanced to Rs. 10,000/- and compensation towards loss of estate is not interfered with and the same is allowed at Rs. 15,000/-.

On the basis of the discussion, the income of the deceased would come to Rs. 1800/- after doubling Rs. 1200/- to Rs. 2400/- and after taking the mean of them. After making 1/3rd deductions the monthly loss of dependency comes to Rs. 1200/- and the annual loss of dependency comes to Rs. 14400/- per annum and after applying multiplier of 13 it comes to Rs. 1,87,200/-. After considering Rs. 45,000/-, which is granted towards non pecuniary damages the total compensation comes out as Rs. 2,32,200/-.

In view of the above discussion, the total compensation is enhances to Rs. 2,32,200/- from Rs. 1,35,200/- with interest on the differential amount @ 7.5% per annum from the date of filing of the petition till realization and the same shall be paid to the appellant by the respondent No. 1 to 3 who are jointly and severally liable in the same proportion as awarded by the tribunal within 30 days of this order.

With the above directions, the present appeal is disposed of.